(A) "Upset" defined. For the purpose of this section, the following definition shall apply unless the context clearly indicates or requires a different meaning.
UPSET. An exceptional incident in which there is an unintentional and temporary non-compliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An UPSET does not include non-compliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
(B) Use of upset as an affirmative defense. An upset shall constitute an affirmative defense to an action brought for non-compliance with categorical pretreatment standards if the requirements of division (C) below are met.
(C) Elements of defense. A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence, that:
(1) An upset occurred and the user can identify the cause(s) of the upset;
(2) The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(3) The user has submitted the following information to the Superintendent within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):
(a) A description of the indirect discharge and cause of non-compliance;
(b) The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
(c) Steps being taken or planned to reduce, eliminate and prevent recurrence of the non-compliance.
(D) Burden of proof. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(E) Variability of judicial determination. Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for non-compliance with categorical pretreatment standards.
(F) Reduction; loss or failure user's treatment facility.
(1) Users shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided.
(2) This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
(Ord. 733, passed 12-10-2007)